In re Aaron I.

Filed 7/26/07 In re Aaron I. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Aaron I. appeals juvenile court orders, challenging his commitment to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF),[1] formerly known as the California Youth Authority. He seeks a new dispositional hearing on the ground the court abused its discretion by ordering DJF commitment. He also contends the courts written dispositional and commitment orders do not accurately reflect the courts rulings regarding credit for time served and the maximum term of confinement. We agree with appellant that the juvenile court should correct its written orders, but otherwise affirm.

Factual and Procedural Background

At thirteen, appellant became a ward of the juvenile court and was placed on probation in his mothers care after he admitted to the felony offense of attempted grand theft of a vehicle to resolve a petition filed under section 602 of the Welfare and Institutions Code[2] in Alameda County.

During the next two years, the courts in Alameda and Solano Counties sustained six additional section 602 petitions filed against appellant for the commission of various offenses, including unlawful taking or driving a vehicle as a felony (Veh. Code,  10851); second degree robbery (Pen. Code,  211); and receiving stolen property as a felony (Pen. Code,  496, subd. (a)). After sustaining the petitions, the courts continued appellant as a ward and tried various placements at group homes and with his aunt to assist appellant in modifying his behavior without success.

After appellant ran away from his third group home, the Solano County district attorney filed the eighth petition under section 602 on November 1, 2005, alleging that appellant, then 15, had committed the felony offense of carjacking (Pen. Code,  215, subd. (a)), and the misdemeanor offenses of resisting a peace officer (Pen. Code,  148, subd. (a)(1)), and driving without a license (Veh. Code,  12500, subd. (a)). Appellant was also given notice that any previously sustained petitions could be used by the court in aggregating the total amount of time appellant could be removed from his parents custody.

After a contested jurisdictional hearing, the court sustained all three offenses alleged in the November 1, 2005, petition. On February 21, 2006, the court continued appellant, then 16, as a ward and placed him at the Fouts Springs Youth Facility (Fouts) for a year with a maximum term of confinement of 18 years, 2 months. Within two months, appellant was terminated from the program after a physical altercation with another youth, and various program infractions, including not complying with the program rules and being disrespectful to staff. On May 24, 2006, the Solano County probation department (department) filed a supplemental petition pursuant to section 777, subdivision (a)(2), alleging that appellant had violated probation by being terminated from Fouts. Appellant admitted the violation and the court returned him to Fouts on June 30, 2006.

Proceedings Leading to DJF Commitment

Three months after his second return to Fouts, appellant was again terminated from the program after a physical altercation with another youth and continuing to be non-compliant and disrespectful. According to the Fouts staff, because appellant was unable to change his attitude or behavior, he was terminated from the program. The department filed a petition pursuant to section 777, subdivision (a)(2), alleging that appellant had violated probation by being terminated from Fouts for a second time.

At a contested jurisdictional hearing, the court heard testimony from a Fouts senior group counselor, a Fouts group counselor who worked with appellant, a department officer, and appellant. The court found that appellant had violated probation by being terminated from Fouts. The court ordered a psychological assessment.

The court-appointed psychologist Richard E. Wagner interviewed appellant and administered several tests to him over two hours and forty-five minutes. The results of several assessment tests indicated, among other things that appellant was exhibiting clinical levels of depression and a moderate tendency to over react with anger in situations. Wagner opined that appellants emotional problems of depression and anxiety were caused by a very traumatic early childhood. Appellant was born addicted to cocaine and was probably hyperactive as a child. His parents had histories of drug and spousal abuse, and at times, they cared for six to nine children. Before becoming a ward, appellants school had created an individual educational program for him at a young age, he was listed as severely emotionally disturbed since age 6 or 7, and he was treated with Ritalin. He also was suffering from post-traumatic stress disorder caused by the sudden accidental death of a friend when appellant was 12. Appellant did not appear to have sought help for this condition or it may not have been offered.

As to appellants current situation, Wagner noted that appellants criminal behavior was mostly against property, involving stealing cars, he had also been physically violent toward the Fouts staff and other wards. Appellants current refusal to accept responsibility for past or present crimes, and his apparent lack of a conscience, and angry, vacillating mood swings, were the hallmark of his antisocial traits and signs of an underlying borderline personality disorder in development.

According to Wagner, appellant could benefit from anger management and a trial use of an antidepressant. A medication evaluation was strongly warranted and could possibly produce some improvement in appellants behavior, but such treatment would work only if appellant took the medication and engaged in consistent individual therapy directed at working through his post traumatic stress disorder, depression, and anger issues. Appellants history of running away from group homes and the seriousness of his criminal activity limited the choices for long-term consistent treatment. Thus, Wagner concluded that perhaps consideration of a secure program, such as New Foundations, during which time individual medical and psychological attention could be paid to him could be considered rather than prison time. If he fails at this last chance, after finally being evaluated and treated for his depression, the option of a locked facility with presumably less treatment will be necessary.

The department supplemental report recommended that appellant be continued as a ward and committed to DJF. The report discussed appellants inability to take advantage of the program offered at Fouts. Appellant recalled taking Ritalin in 2004 for two to three months for his hyperactivity, but he stopped taking the medication because it made him feel light-headed and slow. Nevertheless, he was not opposed to a medical assessment to help him manage his mood swings.

In determining an appropriate placement for appellant, the department noted that according to the information provided by Wagner, appellant should remain in a secure environment due to his criminality while his medical and psychological needs were assessed. Appellants flight from group homes, along with his level of delinquency in the community, caused additional conflict in formulating such a treatment plan. The report discussed why several placements were not appropriate. New Foundations was not recommended because it was a four month program, designed for the purpose of reunifying a youth with his or her family. In this case, reunification was not an issue because appellants mother had relocated to southern California and appellants father was not actively involved in his life. Also, the services at New Foundations were not sufficient to meet appellants therapeutic needs and the length of the program would not address appellants extensive delinquent behaviors, which remained a concern. Fouts was no longer an option because appellant had repeatedly failed to adjust to the program and the staff would not support appellants return after the second termination. Finally, placement in another group home was rejected because appellant was a high flight risk. Also, there were currently no group homes that were structured enough to provide adequate supervision and medical assessment services required by appellant. Thus, the department determined that the secured environment of DJF was the only available placement to address appellants level of delinquency and his psychological issues, and appellants mental and physical conditions rendered it probable that he would benefit by the reformatory educational discipline or other treatment provided by DJF.

At a contested dispositional hearing, the court noted it had read and considered the supplemental probation department report and the psychological evaluation. The court also considered a letter written by appellant. Appellants counsel argued that the court should place appellant at New Foundations as a starting point, even though the program was probably not appropriate because it was too short to address appellants needs. The prosecutor opposed placement at New Foundations, and argued that the court should place appellant at DJF, as recommended by the probation department. After reviewing appellants history while a ward of the court, as well as the psychological evaluation, the court determined that the New Foundations program would not provide appellant with sufficient structure or protect the community. The court found that appellants mental and physical conditions were such as to render it probable that he would benefit by the reformatory education and discipline and/or treatment provided by DJF. The court set appellants maximum term of confinement at 13 years, 6 months, and awarded 1,121 days credit for time served. This appeal ensued.

DISCUSSION

I. Commitment to DJF

Appellant argues that his commitment to DJF was inappropriate for various reasons, none of which warrants reversal.

We review a commitment decision for abuse of discretion, and indulge all reasonable inferences to support the decision of the juvenile court. [Citations.] (In reAsean D. (1993) 14 Cal.App.4th 467, 473.) A reviewing court will not find that the juvenile court has abused its discretion in committing a minor to DJF if the record demonstrates  probable benefit to the minor from commitment to the [DJF] and that less restrictive placements would be ineffective or inappropriate. [Citation.] [Citation.] (In re Pedro M. (2000) 81 Cal.App.4th 550, 555-556.)

The record at the dispositional hearing establishes that less restrictive placements would be ineffective or inappropriate. Appellant argues the juvenile court should have considered out-of-state placement. But, the court may not order an out-of-state placement unless it finds, in its order of placement, that [i]n state facilities or programs have been determined to be unavailable or inadequate to meet the needs of the minor and the out-of-state placement facility meets certain licensure standards. ( 727.1, subd. (b).) Having not determined that DJF was unavailable or inadequate to meet appellants needs, the court was not required to consider out-of-state placements.

Pursuant to section 734,[3] a juvenile court is authorized to commit a youth to DJF where it is fully satisfied that DJF with its specialized institutions and rehabilitative programs tailored to the [juveniles] sophistication and need for security [citation], offer[s] the promise of probable rehabilitative benefit to appellant. (In re Tyrone O. (1989) 209 Cal.App.3d 145, 153.) Here, the court made the required section 734 finding that appellant would probably benefit from DJF commitment after considering appellants psychological evaluation, his criminal conduct, and the previous unsuccessful attempts at rehabilitation in less restrictive placements.

Contrary to appellants contention, the juvenile court was under no obligation to specify the services and treatment programs that appellant will receive at DJF. Instead, it is the responsibility of DJF to determine whether it will accept a committed youth that can be materially benefited by its reformatory and educational discipline, and if it has adequate facilities, staff and programs to provide that care. ( 736, subd. (a).) To determine who is best served by DJF and who would be better served by the State Department of Mental Health, the Chief Deputy Secretary of the Division of Juvenile Justice and the Director of the State Department of Mental Health shall . . .confer and establish policy with respect to the types of cases that should be the responsibility of each department. ( 736, subd. (b).) In its order of commitment, the court identified appellant as an individual with exceptional needs. If appellant believes DJF is unable to, or failing to, provide treatment consistent with [s]ection 734, he may pursue relief under section 779. The latter statute permits the juvenile court to change, modify or vacate the conditions of wardship even following an order of commitment to DJF. ( 779; see In re Antoine D. (2006) 137 Cal.App.4th 1314, 1323; In re Robert W. (1991) 228 Cal.App.3d 32, 34.)

II. Remand Necessary To Correct Dispositional and Commitment Orders

The parties agree, and we concur, that the matter should be remanded to the juvenile court to correct certain errors in the written dispositional and commitment orders.[4]

A. Credit for Time Served

At the dispositional hearing, the juvenile court awarded appellant credit for time served of 1,121 days. However, in the written dispositional and commitment orders, appellant is awarded only 1,021 days. On remand, the court should correct its written orders to reflect credit for time served of 1,121 days.

B. Maximum Term of Commitment

At the dispositional hearing, the juvenile court set appellants maximum term of confinement at 13 years, 6 months, which is accurately reflected in the written dispositional and commitment orders. However, the written dispositional order also includes an additional statement that appellants maximum period of physical confinement at DJF is 18 years, 2 months. This latter statement is incorrect and should be stricken from the written dispositional order.

DISPOSITION

The matter is remanded with directions to the juvenile court (1) to correct the written dispositional and commitment orders to reflect that appellant is awarded credit for time served of 1,121 days, and (2) to strike from the written dispositional order the statement that appellants maximum period of physical confinement at Department of Corrections and Rehabilitation, Division of Juvenile Facilities, is 18 years, 2 months.

The juvenile court shall send an amended commitment order to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities. The dispositional and commitment orders are otherwise affirmed.

_________________________

Parrilli, Acting P. J.

We concur:

_________________________

Pollak, J.

_________________________

Siggins, J.

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[1] Since July 1, 2005, the Department of Youth Authority has been renamed the Department of Corrections and Rehabilitation, Division of Juvenile Facilities. (Welf. & Inst. Code,  1703, subd. (c).) (In re Lemanuel C. (2007) 41 Cal.4th 33, 37, fn. 2.)

[2] All further unspecified statutory references are to the Welfare and Institutions Code.

[3] Section 734 mandates that, No ward of the juvenile court shall be committed to the [DJF] unless the judge of the court is fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the [DJF].

[4] Although we note there are other discrepancies in the record, we only address those for which appellant seeks correction.